Crimes Against Humanity and War Crimes Program Evaluation

Executive Summary

1. Introduction

This document constitutes the final report for the horizontal evaluation of the Crimes Against Humanity and War Crimes Program (the CAHWC Program, or the Program). The partners in the Program are the Canada Border Services Agency (CBSA), Immigration, Refugees and Citizenship Canada (IRCC)Footnote 1, the Department of Justice Canada (Justice), and the Royal Canadian Mounted Police (RCMP). The evaluation covers the period from 2009–2010 to 2014–2015 and focusses on the Program’s activities related to modern war crimes, which are defined as including crimes against humanity, war crimes, and genocide stemming from events occurring after the Second World War.Footnote 2 In accordance with the 2009 Treasury Board Policy on Evaluation, the evaluation addresses both the relevance and the performance of the Program.

2. Description of the Program

The purpose of the Program is to support Canada’s policy to deny safe haven to persons believed to have committed or been complicit in crimes against humanity, war crimes, or genocide, and to contribute to the domestic and international fight against impunity.

The Program uses several legislative remedies to respond to persons believed to have committed or been complicit in crimes against humanity, war crimes, or genocide. The choice of the remedy depends on a number of factors, including whether the individuals are attempting to enter Canada or are already in Canada and the availability of adequate evidence to pursue the remedy. The available remedies include denial of visa/entry into Canada; exclusion from the refugee determination process; an admissibility hearing and, if inadmissible, removal from Canada; revocation of citizenship proceedings; extradition to an international criminal tribunal; and criminal investigations and prosecutions.

Activities of the Program partners are coordinated through the Program Coordination and Operations Committee (PCOC), which coordinates and facilitates interdepartmental efforts to assess allegations, develop operational policy, carry out integrated planning and accountability functions, and ensure Program compliance with international obligations. The Program partners also operate a War Crimes Program Steering Committee (the Steering Committee), which is composed of senior officials at the Assistant Deputy Minister or equivalent level from each partner. The Steering Committee plays an oversight role for PCOC.

3. Methodology

In order to address the questions included in the evaluation matrix, the evaluation included the following methodological approaches: review of performance information, documents, files, and databases; key informant interviews; a survey of departmental staff; case studies of five of the remedies under the Program; a review of three countries that have programs for addressing modern war crimes; and cost comparisons of the Program’s remedies.

4. Findings

4.1. Relevance

Continued need for the CAHWC Program

The evaluation confirmed there is a continued need for the Program. Crimes against humanity, war crimes and genocide continue to occur in recent and ongoing non-conventional conflicts.

Within this context, the CAHWC Program remains relevant because it provides the coordination and expertise to prevent persons believed to have committed or been complicit in crimes against humanity, war crimes, or genocide from entering Canada and to investigate and hold accountable those individuals in Canada who have committed crimes against humanity, war crimes, or genocide.

Program aligns with government priorities and departmental strategic outcomes

The evaluation found that the Program aligns well with government policy priorities, including strengthening border security, maintaining the integrity of Canada’s immigration and refugee systems, improving the efficiency of the citizenship revocation process, and enforcing Canada’s no safe haven policy. The Program’s objectives also support the strategic outcomes of its partner departments.

Continued role for the federal government

As the federal government continues to fulfill its international obligation to provide safe haven to refugees, it must also fulfill its domestic and international legal obligations to exclude, extradite or revoke the citizenship of perpetrators of atrocities. The federal government has exercised its authority to create a legislative framework to prevent or deter entry, and remove individuals who have committed or are complicit in crimes against humanity, war crimes, or genocide. Furthermore, the federal government has ratified a number of international agreements that, among other things, obligate Canada to provide safe haven to refugees while ensuring perpetrators of crimes against humanity, war crimes, or genocide are excluded from refugee protection, removed, or prosecuted. Given the scope and nature of the Program, its responsibilities cannot be devolved to provincial/territorial governments.

4.2. Outcome achievement

Increase knowledge and awareness of the Program

The Program has made efforts to ensure departmental staff, as well as external stakeholders such as non-governmental organizations (NGOs) that work in the area of human rights or with diaspora communities, are knowledgeable about the Program.

The importance of staff awareness and knowledge about the Program helps ensure that it works efficiently and effectively. Staff should be aware of their roles as well as of other partner department roles. The evaluation found that partner staff are generally knowledgeable about the Program and consider their roles and responsibilities to be clear. In addition, to build knowledge of the Program internally and support partners’ capacity to deliver the Program, a variety of training activities have been undertaken and tools developed.

The evaluation findings indicate areas for improvement in building the staff’s knowledge base. There is a consensus that more training opportunities are needed, that mechanisms for delivering training need to be more inclusive of the regions (for IRCC and the CBSA), and that training programs for experienced staff are lacking (for Justice). The evaluation also found that tools, policies, and procedures are generally considered useful, but some, such as the Enforcement Manual and Tactical Guide, require updating. In addition, the Program’s knowledge management efforts, which support a coordinated approach by ensuring that relevant knowledge is shared, appear to have stalled or become dormant. This represents a risk for the Program as significant expertise resides in individual staff members; it is also a lost opportunity to improve Program efficiency.

External outreach to increase awareness of the Program is important for several reasons, including obtaining the assistance of diaspora communities in identifying persons who have entered Canada, and who are believed to have committed crimes against humanity, war crimes, or genocide. While the Program has continued to conduct outreach, the evaluation found that the Program has not followed through on suggestions to address identified gaps, such as developing a combined outreach plan among partners and conducting more outreach to groups in Canada, both of which were raised in the 2008 evaluation. Suggestions were to increase outreach with domestic and international NGOs and victims/survivors and victims’ organizations to ensure diaspora communities are aware of the Program.

Effective management of allegations

The evaluation findings indicate that, in general, the Program has effectively managed allegations. The processes for identifying and screening allegations, investigating allegations, and selecting and implementing remedies were all considered well managed by external stakeholders. In particular, Canada’s approach to admissibility screening was considered very effective and advanced compared to other jurisdictions. Investigations were characterized as well organized and detailed. The mechanism for selecting and implementing remedies, the File Review Subcommittee of PCOC, has developed criteria for assessing files and assigning remedies, which is considered to generally work well and enable the Program to make the best decisions regarding how to direct its resources.

The evaluation identified some areas where the Program was experiencing challenges that affected its allegation management. In particular, the level of resources available has restricted the number of criminal investigations and prosecutions that can be undertaken. Coordination between the RCMP and Justice related to investigations is the subject of discussion between the partners and is considered a work in progress, particularly as it relates to the level of involvement by the Justice Crimes Against Humanity and War Crimes Section (CAHWC Section or the Section) in investigations, as well as the timing for involving the prosecutor from the Public Prosecution Service of Canada (PPSC). Both Justice and the RCMP acknowledge that the CAHWC Section would benefit from having more counsel with criminal prosecution experience.

Having a coordinated, multi-disciplinary program is considered by key informants to be a major benefit of the Canadian approach, yet at the same time sharing information among partners was cited as an area in need of improvement. Various strategies have been undertaken to improve information sharing, and some have been quite successful, such as the IRCC liaison in the CAHWC Section, while others still need streamlining to remove duplication of effort among partners, such as the file transfer protocols developed between the RCMP and Justice and between Justice and the CBSA.

Part of effective management of allegations is performance monitoring and reporting, and there is a clear consensus that the CAHWC Program needs to improve in this area. Performance reports are considered by both internal and external stakeholders to be important for accountability as well as to build awareness of the Program, and yet the most recently published performance report is for 2008–2011. In addition to more timely performance reports, the Program could also consider tracking individual-level progress through the remedy(ies). Current performance reporting is based on aggregate numbers and, while illustrative of the Program’s annual activities and outputs, it prevents the Program from linking these activities to its intermediate and ultimate outcomes and precludes the ability to more accurately assess the success rate and efficiency of remedies.

Deterring and preventing persons believed to have committed or been complicit in crimes against humanity, war crimes, or genocide from entering Canada

The Program has prevented persons believed to have committed or been complicit in crimes against humanity, war crimes, or genocide from entering Canada. During the period covered by the evaluation, the number of visa applications assessed in overseas immigration offices for these crimes has averaged over 3,000 per fiscal year, and Canada has denied 701 of these applicants entry. In recent years, the number of visas assessed overseas that were denied entry where commission or complicity in crimes against humanity, war crimes, or genocide was at issue has dropped substantially. The evaluation does not have information on the reasons for this decline.

Whether the Program has deterred other individuals involved in these crimes from seeking entry into Canada cannot be determined with any certainty. However, the screening processes, the denial of entry, and the use of other remedies, including prosecutions, are thought to send a message to individuals involved or complicit in crimes against humanity, war crimes, or genocide, that Canada will not provide a safe haven.

Removal of persons believed to have committed or been complicit in crimes against humanity, war crimes, or genocide from entering Canada

Performance data demonstrates that the Program employed all of the available remedies during the evaluation period. In this period, 285 individuals have been denied refugee protection, 47 claimants have been found inadmissible, and 138 individuals have been removed from Canada based on reasonable grounds to believe they were involved or complicit in crimes against humanity, war crimes, or genocide. In addition, one individual’s citizenship has been revoked by the Governor in Council (GIC)Footnote 3 and another has been imprisoned for life for involvement in crimes against humanity, war crimes, or genocide.

Whether these figures are an indication of success is more difficult to assess. For example, the number of removals per fiscal year has been declining since 2006. In addition, the number of outstanding warrants for removal remains at close to 200, which means that approximately 200 individuals reasonably believed to be involved in crimes against humanity, war crimes, or genocide may potentially remain in Canada (some of these individuals might have left Canada without authorities’ knowledge). The available performance data are based on annual totals for each remedy.

Canadian leadership regarding CAHWC issues

The evaluation findings show that Canada is still considered one of the leading nations in the fight against impunity. This perception is based on Canada’s historic role in signing and implementing the Rome Statute, the early creation of a dedicated war crimes unit (which has influenced other countries’ approaches), and playing a leading role in the creation of the International Criminal Court (ICC). Canada continues to be a leader through internationally renowned expertise within the CAHWC Program and the development of influential jurisprudence on CAHWC issues.

However, the evaluation also found a strong undercurrent of opinion that Canada’s leadership has waned or is at risk of waning. A key theme within this undercurrent is that the international activities of the federal government do not align with Canada’s historic image as a leader on CAHWC issues. According to key informants, this has been exemplified through Canada’s absence from efforts to refer Syria to the ICC, opposition of Palestine’s ICC membership, and continued refusal to endorse budget increases for the ICC, despite its growing case load. Furthermore, Canada’s leadership in conducting prosecutions is questioned when compared to other established programs (Belgium) and even relatively new programs (Sweden), which have conducted more prosecutions than Canada in a shorter time period.

4.3. Efficiency and economy

The Program has implemented measures to maximize the achievement of its results, while minimizing the use of its resources. In particular, the file review criteria are intended to prioritize the least costly and complex remedy (denial of visas); use the next level of cost and complexity (refugee exclusion and deportation proceedings); and, when appropriate, escalate to the most costly and complex remedies (revocations and criminal investigations/prosecutions). Cost estimates and usage of the remedies indicate that the Program is allocating its resources efficiently based on the criteria.

Determining whether the Program is operating efficiently and economically or whether more resources could be provided to criminal investigations and prosecutions is hampered by the lack of financial data to support the analysis Two of the partner departments indicated that all of the CAHWC Program funds were spent but could not provide information on whether expenditures were exceeded because the funding is A-base funding that is co-mingled with other resources. Admissibility analysis under IRPA, which includes crimes against humanity, war crimes and genocide, is a programmatic function across the Operations Branch of the CBSA, therefore the CBSA estimates it spends considerably more through its base funding. As a result, more than half of the Program budget can be accounted for only in general terms, making it challenging to understand how partners internally allocate resources to Program activities, including supporting activities such as knowledge management, training and program coordination.

The Program has operated with the same budget since its inception in 1998, and opinion within the Program indicates that the strain of conducting its work within the available resources is showing. The Program’s resource constraints have affected its ability to pursue criminal investigations and prosecutions.

The evaluation findings also indicate that the Program should explore better information sharing as a method to promote efficiency. In particular, an area that received a recommendation in the 2008 evaluation — information sharing among Program partners — could still be improved. A shared database or virtual library so that research is not duplicated clearly still has support within the Program. Another opportunity for efficiency gains is sharing information and collaboration between the Program, Department of National Defence (DND), and Global Affairs Canada (GAC).Footnote 4 International information sharing could also produce efficiencies. Suggestions made by key informants were to share research information as well as information obtained through investigations among countries prosecuting modern war crimes. By sharing information, countries would ensure they are not duplicating efforts.

4.4. Design of the CAHWC Program

The evaluation found the design of the CAHWC to be appropriate and generally effective. The CAHWC Program was designed to be a coordinated, multi-disciplinary program. Both key informants and survey respondents believe that the coordinated approach is necessary and that the current legislative and policy framework is insufficient on its own to hold persons who have committed crimes against humanity, war crimes, or genocide accountable.

PCOC plays a valuable centralizing and coordinating role within the Program, providing the Program with the collaborative management structure it needs to prioritize cases and operate within the multi-departmental, multi-remedy approach to crimes against humanity, war crimes, and genocide. The Steering Committee was generally recognized as an important component of the Program’s multi-departmental governance, but concerns were expressed over the Committee’s functionality and effectiveness, given the infrequency of its meetings and the general lack of involvement of ADMs in the Committee.

The evaluation also found that the Program had undertaken substantial work to identify issues affecting program operation and organize efforts to resolve these issues. A number of innovative subcommittees have been established to improve the operation of the Program, such as the File Review Subcommittee, which has become a staple of the Program’s approach to allegation management. However, the work of some of these ‘problem solving’ subcommittees is often stalled for various reasons, including a lack of funds and human resources. Consequently, several subcommittees that have been tasked with solving key ongoing operational issues, such as coordination and information sharing, have not reported on any results, nor is there evidence that the issues they were to address have been resolved. This leaves an open question as to whether the governance structure is operating as effectively (i.e., addressing all key issues) or as efficiently (i.e., not wasting resources or effort on ultimately unnecessary initiatives) as it might.

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